OUR OPINION: The NSA is a pack of liars

The secret court that oversees foreign intelligence gathering says it has been misled time after time by the National Security Agency

The Patriot Ledger, Quincy, MA

Writer

Posted Aug. 30, 2013 at 12:01 AM
Updated Aug 30, 2013 at 7:04 PM

Posted Aug. 30, 2013 at 12:01 AM
Updated Aug 30, 2013 at 7:04 PM

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U.S. District Judge John Bates, who in 2011 presided over the secret Foreign Intelligence Surveillance Court, bent over backward to avoid directly calling the National Security Agency a bunch of liars.

In a newly declassified October 2011 opinion, Bates wrote that “the volume of and nature of the information it (the NSA) has been collecting is fundamentally different from what the court had been led to believe.”

Translation: We've been had.

Under pressure to release surveillance secrets, James Clapper, the director of national intelligence, now has disclosed that the NSA had “mistakenly” intercepted and stored as many as 56,000 Internet communications – each year for the past three years – from Americans with no connection to terrorism.

The secret court is supposed to oversee and approve NSA plans to collect data, especially in delicate cases involving an American citizen.

But the NSA far exceeded its mandate in collecting intelligence, emails and other electronic communications. The government disclosures, the judge wrote, “mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.”

Translation: The agency is a repeat offender.

To drive home the point, Bates referenced “repeated inaccurate statements made in the government’s submissions.”

The upshot, he wrote, is that the misrepresentations by the agency “fundamentally alters the court's understanding of the scope of the collection ... and requires careful re-examination of many of the assessments and presumptions underlying prior approvals.”

Translation: We won’t get fooled again.

The surveillance court is a vital backstop in a democracy that, for its own protection, must operate a highly secret global-surveillance operation – but one that is not necessarily outside the rule of law.

But the court has one glaring deficiency: Its judges have no independent means of verifying what the agency chooses to tell it.

Several lawmakers have urged the creation of a special advocacy post to cross-examine agency representatives so that the proceedings are not totally one-sided. That is fine within the confines of the courtroom, but the court also needs its own investigators, answerable only to the court – not to ferret out wrongdoing, but simply to verify the accuracy of what the judges are being told.

Otherwise, the judges might come out and call the next “substantial misrepresentation” by its rightful name: a lie.